20-2131

Chen v. Garland

BIA

McCarthy, IJ

A205 034 120

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED 

AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS 

COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A 

PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY 

NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 30th day of January, two thousand twentythree.

PRESENT:

DEBRA ANN LIVINGSTON,

Chief Judge,

PIERRE N. LEVAL,

JOSÉ A. CABRANES,

Circuit Judges.

_____________________________________

QI YONG CHEN,

Petitioner,

v. 20-2131

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Joshua Bardavid, New York, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant

Attorney General; Anthony C. 
2

Payne, Assistant Director; Judith 

R. O’Sullivan, Trial Attorney, 

Office of Immigration Litigation, 

United States Department of 

Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED.

Petitioner Qi Yong Chen, a native and citizen of the 

People’s Republic of China, seeks review of a June 2, 2020, 

decision of the BIA affirming a March 29, 2018, decision of 

an Immigration Judge (“IJ”) denying his application for 

asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). In re Qi Yong Chen, No. 

A 205 034 120 (B.I.A. June 2, 2020), aff’g No. A 205 034 120 

(Immig. Ct. N.Y. City Mar. 29, 2018). We assume the parties’ 

familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as supplemented by 

the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 

Cir. 2005). The applicable standards of review are well

established. See 8 U.S.C. § 1252(b)(4)(B) (providing that 

“the administrative findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to conclude to 
3

the contrary”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

Cir. 2018) (reviewing adverse credibility determination under

a substantial evidence standard).

“Considering the totality of the circumstances, and all 

relevant factors, a trier of fact may base a credibility 

determination on the demeanor, candor, or responsiveness of 

the applicant or witness” and on inconsistencies within and 

between an applicant’s statements and other evidence, 

“without regard to whether an inconsistency, inaccuracy, or 

falsehood goes to the heart of the applicant’s claim, or any 

other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 

defer . . . to an IJ’s credibility determination unless, from 

the totality of the circumstances, it is plain that no 

reasonable fact-finder could make such an adverse credibility 

ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 

2008); accord Hong Fei Gao, 891 F.3d at 76. Here, we conclude 

that substantial evidence supports the agency’s adverse 

credibility determination.

In his asylum application, Chen alleged that police twice 

raided the family church he attended in China, beating him 

and his grandmother in 2009, and arresting, detaining, and 
4

torturing him for a week in 2010. At the hearing, however, 

he initially omitted any mention of the 2009 incident and 

answered affirmatively when asked if his 2010 arrest was the 

only incident of physical abuse. This represented a

significant inconsistency between Chen’s testimony and his 

application and one on which the agency reasonably relied. 

See 8 U.S.C. § 1158(b)(1)(B)(iii). Chen failed to adequately 

address this inconsistency when confronted about it, stating 

only that he was nervous and had trouble speaking. See Majidi 

v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner 

must do more than offer a plausible explanation for his 

inconsistent statements to secure relief; he must demonstrate 

that a reasonable fact-finder would be compelled to credit 

his testimony.” (quotation marks omitted)). 

Chen also offered inconsistent testimony on the date of 

his release from detention, expressing some ambiguity as to 

whether he was released on April 25, 2010 (the same day he 

was allegedly first detained) or May 2, 2010. While this 

inconsistency may be explained as a mere misstatement or 

having resulted from confusion, a reasonable fact-finder 

would not be compelled to view it as such and, accordingly, 
5

the agency did not err in considering it as part of its 

broader credibility determination. Id. 

The agency also reasonably relied on inconsistencies and 

the lack of corroboration regarding Chen’s claimed practice 

of Christianity in the United States. See Biao Yang v. 

Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s 

failure to corroborate his or her testimony may bear on 

credibility, because the absence of corroboration in general 

makes an applicant unable to rehabilitate testimony that has 

already been called into question.”). As the agency noted, 

although Chen submitted a certificate of baptism dated 2011 

from the Brooklyn Christian Congregation, he testified that 

he began to attend church at the Church of Grace for Fujianese 

in 2012 and did not testify that he had attended any other 

church earlier while in the United States. Additionally, 

though he testified that he attended church once or twice a 

month, he submitted letters allegedly from fellow 

practitioners stating that Chen attended every week. The 

agency reasonably found these discrepancies to undermine 

Chen’s credibility. Moreover, the agency was not required 

to credit the undated and unsigned letter from Chen’s 
6

grandmother. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 

2013) (upholding BIA’s decision to afford “very little 

evidentiary weight” to letter from applicant’s spouse in 

China “because it was unsworn and because it was submitted by 

an interested witness”).

The inconsistencies, which relate to both the alleged 

harm and Chen’s practice of Christianity, as well as the lack 

of reliable corroboration, provide substantial evidence for 

the adverse credibility determination. See 8 U.S.C. 

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 

Accordingly, we need not address Chen’s argument that the BIA 

erred in finding inconsistencies between his testimony and a 

medical record as well as a “certificate of detention,” 

respectively. See Lianping Li v. Lynch, 839 F.3d 144, 149 

(2d Cir. 2016) (holding that “we may . . . deem remand futile 

and deny the petition for review if . . . substantial evidence 

in the record relied on by the IJ, considered in the 

aggregate, supports the IJ’s finding that petitioner lacked 

credibility” (quotation marks omitted)). The adverse 

credibility determination is dispositive of asylum, 

withholding of removal and CAT relief because all three forms 
7

of relief were based on the same factual predicate. See Paul 

v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court